Mid-Plains Construction Company

Plain-English summary

OSHA alleged that Mid-Plains Construction employees worked on a roof more than 25 feet above the ground without adequate fall protection. The citation initially relied on the general duty clause, but the Secretary's complaint amended the legal theory to the construction safety-net standard while leaving the factual allegation unchanged. The judge dismissed the complaint based on the amendment, the Secretary's lack of an opposition filing, and an asserted failure to explain the amendment. The Commission reversed because the Secretary had not received the dismissal motion in time to respond, the employer had fair notice of the unchanged facts, and the complaint explained that a specific standard applied. It reinstated the case and remanded for further proceedings without deciding whether a violation occurred.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. § 1926.105(a)
• Outcome: Dismissal set aside; case reinstated and remanded for further proceedings
• Key point: A complaint may amend the legal theory when the underlying factual allegation remains the same and the employer has fair notice and time to prepare.

Full text (OSHRC public release)

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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NO. 4584

MID-PLAINS CONSTRUCTION
COMPANY,

���������������������������������������������
Respondent.

ORDER OF REMAND

April
2, 1975

Before
MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

CLEARY,
COMMISSIONER:

On November 16, 1973, Judge Herbert E. Bates issued a
decision in this case, granting respondent�s motion to dismiss the Secretary�s
complaint.

On December 17, 1973, the Commission directed that the
decision of the Judge be reviewed in accordance with section 12(j) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. � 651 et seq.,
hereinafter referred to as �the Act�).

Respondent was issued a citation and a notice of proposed
penalty on August 23, 1973, that alleged a violation of section 5(a)(1) of the
Act, the general duty clause. Respondent filed a timely notice of contest. On
October 2, 1973, the Secretary amended the citation in his complaint to allege
a violation of section 5(a)(2) of the Act for failing to comply with 29 CFR � 1926.105(a),
instead of a violation of section 5(a)(1). The underlying factual allegation,
that employees of respondent were working on a roof more than 25 feet above
ground without adequate protection, remained the same.

On October 22, 1973, respondent moved to dismiss the
Secretary�s complaint because in amending the citation, the complaint failed to
state the reasons for amendment. Respondent argued that in issuing the
complaint the Secretary failed to comply with rule 33(a)(3) of the Commission�s
Rules of Procedure. [1] In addition, respondent
claimed that by amending the citation in his complaint, the Secretary violated
section 9(a) of the Act, which requires that a citation describe the violation
alleged with particularity. [2]

Judge Bates adopted respondent�s argument, and dismissed the
complaint on the following three grounds. First, the Secretary failed to file
any objection to respondent�s motion to dismiss. Second, the �substantial
variance between the Citation and Complaint . . . is contrary to the basic
requisites of procedural due process.� Third, the Secretary�s failure to comply
with rule 33(a)(3) warrants dismissal of the complaint.

After reviewing the record, we disagree with all three of the
Judge�s reasons. To begin with, the Secretary�s brief on review notes that a
copy of respondent�s motion to dismiss was not received until a day before
being served with a copy of the Judge�s ruling that granted the motion. Thus,
the Secretary had no time to respond to the motion to dismiss. [3]

The Commission strongly disagrees with the Judge�s statement
that the amendment of a citation in the complaint constitutes a denial of due
process. It is well-settled that �administrative pleadings are very liberally
construed and very easily amended.� National Realty & Constr. Co., Inc.
v. O.S.H.R.C. , 489 F.2d 1257, 1264 (D.C. Cir. 1973) (footnotes omitted).
Also, that citations are drafted by non-legal personnel militates in favor of
allowing amendments. See National Realty, supra at 1264. Indeed, under
rule 15(a) of the Federal Rules of Civil Procedure [4]
a party is entitled to amend his pleadings once as a matter of right. [5]
It is difficult to see how respondent could be prejudiced by an amendment of a
legal theory far in advance of the hearing. The underlying facts at issue
remain the same and respondent has been given notice of the allegations against
it and adequate time to draft responsive pleadings and prepare its defenses.
The purpose of pleadings is to provide �fair notice,� [6]
and this due process requirement has been met.

Finally, the Judge dismissed the complaint because the
Secretary failed to state the reasons for the amendment, as required by rule
33(a)(3) of the Commission�s Rules. The Judge was wrong. The complaint clearly
alleged facts that would bring the case within the ambit of section 1926.105,
and also clearly stated that the reason for the change is that section
1926.105, a specific standard, applies rather than section 5(a)(1) of the Act.
See Paragraph VIII of the complaint. In any event, if no reason had been
assigned and if respondent were concerned about the reason for amendment, it
could have raised this point in a motion for clarification, motion for a more
definite statement, motion for leave to file a later answer, or some other
appropriate motion. Dismissing the complaint is too severe a remedy for a
peccadillo of this kind. Cf. Brennan v. O.S.H.R.C. & Bill Echols
Trucking , 487 F.2d 230, 236 (5th Cir. 1973).

In support of its motion to dismiss, respondent has also
asserted that the allegations of the complaint do not constitute a failure to
comply with 29 CFR � 1926.105(a). Specifically, respondent maintains that in
order for the Secretary to prove a failure to comply with the standard, he must
demonstrate that it was impractical to use devices such as ladders, scaffolds,
catch platforms, temporary floors, safety lines or safety belts. This
interpretation of 29 CFR � 1926.105(a) was specifically rejected by the
Fifth Circuit in Brennan v. Southern Contractors Service & O.S.H.R.C. ,
492 F.2d 498 (5th Cir. 1974) and Brennan v. Verne-Woodrow Co. &
O.S.H.R.C. , 494 F.2d 1181 (5th Cir. 1974).

Accordingly, it is ORDERED that the Judge�s order be set
aside and that the case be reinstated and remanded for proceedings consistent
with this opinion.

�

VAN
NAMEE, COMMISSIONER, concurring:

I concur in the order of remand because I believe that to be
the only just result. Aside from the significant fact that Labor had no
opportunity to respond to the motion to dismiss, the substance of the charge
against Respondent in both the complaint and citation was identical: the
failure to protect employees working at a level more than 25 feet off the
ground. By amending the citation with the complaint ( Cf. Lovell Clay
Products Inc. , 10 OSAHRC 237, BNA 2 OSHC 1121, CCH E.S.H.G. para. 18,327
(1974), Labor only altered its legal theory of the case. The substance of the
charge was not changed. As I indicated in Diamond Engineering Company ,
Dkt. 4217, (concurring opinion) (February 12, 1975), motions to dismiss are not
to be granted in the usual case merely because one party changes his legal
theory of the case.

On the other hand, I express no opinion on the applicability
of 29 C.F.R. 1926.105(a) to the facts alleged as violative of the Act. I would
note, though, that the complaint alleges failure to use safety nets or safety
belts, and we have recently held that 29 C.F.R. 1926.28(a) mandates use of
safety belts as protection against fall hazards. Hoffman Construction Co. ,
Dkt. 644, BNA 2 OSHC 1523, CCH E.S.H.G. para. 19,275 (January 31, 1974); Carpenter
Rigging and Contracting Corp ., Dkt. 1399, BNA 2 OSHC 1544, CCH E.S.H.G.
para. 19,252 (February 4, 1975).

Finally, I would note that the motion to dismiss went only to
the complaint; it did not include the citation. The judge only dismissed the
complaint; he did not expressly vacate the citation upon which the complaint
was based. There is a question whether the cause of action survives once a
complaint is dismissed. This question might be answered in the affirmative if
it is assumed that the citation does not merge with the complaint. We have not
decided that question, and it has not been argued in this case. It would be
inappropriate to decide it herein. Diamond Engineering Co., supra .

�

MORAN,
CHAIRMAN, dissenting:

My colleagues, once again, permit an amendment in the
complaint, even though the complainant blatantly disregarded Rule 33(a)(3) of
the Commission�s Rules of Procedure by not stating the reasons therefor. Review
of many cases convinces me that the failure to comply with this procedural
requirement is becoming the rule rather than the exception. See, e.g.,
Secretary v. Pukall Lumber Company (Docket No. 10136, March 18, 1975); Secretary
v. Martin Iron Works, Inc. , 15 OSAHRC 33 (1975) (dissenting opinion).
Compliance with the Commission�s procedural rules is a prerequisite for the
orderly conduct of our proceedings. That objective cannot be achieved when the
Commission fails to enforce its rules.

In Secretary v. Pukall Lumber Company, supra , I
recently discussed the undesirability of permitting amendments in total
disregard of our procedural requirements. Rather than repeating the remarks
that I made there, I will simply add that this is another example of the
Commission�s failure to provide equal treatment to party litigants. In my
opinion, it is wrong to overlook procedural failures by the government and to
strictly enforce procedural requirements that pertain to employers. Compare
Secretary v. Advance Air Conditioning, Inc., 7 OSAHRC 736 (1974), with Secretary
v. Penn Central Transportation Company , 13 OSAHRC 604 (1974); see Secretary
v. American Airlines, Inc., 16 OSAHRC 511 (1974).

In this case, the Commission has not only countenanced the
complainant�s failure to comply with Rule 33(a)(3), but it has also amended
that rule in footnote 8. Thus, the complainant has been relieved of the duty to
state the reasons for an amendment, and the burden has been shifted to the
respondent to request the reasons therefor. If such a change is to be made, the
Commission�s rules should be changed formally rather than on an ad hoc basis in
a particular case.

Finally, I note that the lead opinion asserts that the
complainant could amend the citation as a matter of right without addressing
the question of whether the notice of contest to the citation was a responsive
pleading. Under Rule 15(a) of the Federal Rules of Civil Procedure, this right
is limited to the �time before a responsive pleading is served.�

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NO. 4584

MID-PLAINS CONSTRUCTION
COMPANY,

���������������������������������������������
Respondent.

November
16, 1973

BATES,
JUDGE:

Ruling on Respondent�s motion to dismiss the complaint dated
10/22/73. The docket file does not contain any opposition to the Respondent�s
Motion to Dismiss. The substantial variance between the Citation and the
Complaint in re: the description of the alleged violation and the pertinent
statute and regulation is contrary to the basic requisites or procedural due
process for that reason, as well as the Secretary�s failure to conform to Rule
33(a)(3) of the Commission Rules, the Respondent�s Motion to Dismiss the
Complaint is granted.

[1]
Rule 33(a)(3) states:

(3) Where the Secretary seeks in his complaint to amend his
citation or proposed penalty, he shall set forth the reasons for amendment and
shall state with particularity the change sought.

[2] Section 9(a) of the Act reads in
part:

Each citation shall be in writing and shall describe with
particularity the nature of the violation, including a reference to the
provision of the Act, standard, rule, regulation, or order alleged to have been
violated.

[3] See Brief for Secretary at 3.

[4]
The Federal Rules of Civil Procedure expressly govern Commission proceedings.
See section 12(g) of the Act and rule 2(b) of the Commission�s Rules of
Procedure.

[5]
Fed. R. Civ. P. 15(a).

[6]
See K. Davis, Administrative Law Text � 8.02 at 196 (3d ed. 1972).